Nkandla, spurning R600m, Israel: Highlights from Mogoeng’s tenure as chief justice

After spending a decade at the helm of the Constitutional Court (ConCourt) and the judiciary, Mogoeng Mogoeng’s tenure as chief justice officially comes to an end on Monday.

Mogoeng was appointed to the top job by former president Jacob Zuma back in 2011, becoming the country’s fourth chief justice since the dawn of democracy.

At the time of his appointment, a number of lobby groups urged Zuma not to appoint him and pointed to his conservative views as an ordained pastor. They argued that he was lenient on rapists and said his religious views would interfere with his rulings, but he denied this.

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Critics also raised concerns about his independence and said he would act as Zuma’s lackey at the ConCourt, but this was not to be.

During his time in office, Mogoeng has presided over seminal judgments that have tested the bounds of South Africa’s democratic Constitution, advanced the constitutional values and pushed for the modernisation of the country’s courts.

But his tenure has not been without controvesay and complaints, leading to him taking leave from his job just five months before he retires from the judiciary.

His lengthy leave of absence raised eyebrows among many given that the ConCourt was facing attacks on its independence, and was yet to rule on Zuma’s refusal to obey its orders to appear at the Commission of Inquiry into Allegations of State Capture.

These are some of the highlights from Mogoeng Mogoeng’s term of office:

Nkandla judgment

In 2016, Mogoeng presided over the landmark Nkandla judgment and reaffirmed the powers of the public protector to “take appropriate remedial action” against state organs.

The unanimous ruling found that Zuma was required to pay back a reasonable portion of the state funds spent on non-security upgrades at his private residence in Nkandla, north of KwaZulu-Natal.

Mogoeng shone the spotlight on the role of the president as the head of state, describing him as “a constitutional being by design‚ a national pathfinder‚ the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project”. 

The ruling also found that Parliament had failed to carry out its constitutional obligations to hold the president accountable after former public protector Thuli Madonsela released her report on the matter.

Mogoeng turned down R600 million

In a shocking revelation back in 2019, Mogoeng told the media during a briefing that he had rejected an offer of R600 million for court modernisation from an unidentified individual.

“I might have mentioned it to some that I was approached by somebody offering R600 million so that we can modernise the courts, but I know that person, I know that institution [and] I rejected it with the necessary contempt because that is how capture happens,” he said.

Speaker’s powers to prescribe secret ballot

Back in 2017, the ConCourt in an unanimous judgment ruled that the speaker of the National Assembly had the constitutional power to prescribe a secret ballot vote for a motion of no confidence into the president. The judgment was penned by Mogoeng.

At the time, the Constitution gave no clarity on when a secret ballot or open ballot could be implemented by the speaker, but the ConCourt said the speaker had the power to make such a decision.

Mogoeng’s ’devil 666’ anti-vaccine stance

Mogoeng caused a stir in December 2020 when he prayed for any Covid-19 vaccine “of the devil” to be destroyed.

While leading a group in prayer at Tembisa hospital he said: “If there be any [Covid-19] vaccine that is the work of the devil meant to infuse 666 in the lives of the people, meant to corrupt their DNA … may it be destroyed by fire.”

This lead to complaints against him at the Judicial Service Commission, but Mogoeng stood firm and defended his controversial views on vaccines saying he was not going to beg for permission to pray.

“Prayer is controversial in South Africa, insults are not. It is prayer in the name of Jesus that is controversial. All other prayers are fine.

“I’m not going to be begging for permission to pray. Never! In public and in private. It is my constitutional right, I’m a Christian, I’m not going to be hypocritical,” he said.

Mogoeng gives Ramaphosa a bible

During President Cyril Ramaphosa’s inauguration in May 2019, Mogoeng gave him a leatherbound Bible with gold-trimmed pages.

This caused a lot of controversy among the chief justice’s critics who argued he was blurring the lines between his job and religion.

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There were also mixed reactions to his call for prayer in the National Assembly to fix the country’s challenges of corruption, unemployment and crime.

Before swearing in new MPs in Parliament in May 2019, Mogoeng went on his knees and proceeded to pray, but this was not well received by some MPs and his critics.

Comments on Israel

Earlier this year in March, Mogoeng was ordered by the Judicial Conduct Committee (JCC) to retract and apologise for pro-Israel utterances he made in 2020 at a webinar hosted by The Jerusalem Post.

In June last year, Mogoeng said he had an obligation, as a Christian, to love and pray for the peace of Jerusalem.

This led to complaints against him by lobby group Africa4Palestine who argued he had breached the judicial code of conduct.

The JCC decision was the first time that a chief justice was found to have committed misconduct.

Mogoeng lodged his appeal against the JCC finding after he refused to apologise for his pro-Israel comments.

Compiled by Thapelo Lekabe

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